Meningitis Litigation Centralized in Massachusetts

All suits filed against the New England Compounding Center (NECC) over the recent meningitis outbreak will be heard in federal court in Massachusetts, where the pharmacy is located, News Channel 5 reports. A judicial panel centralized the suits in Massachusetts because that is where NECC’s bankrupty case is pending, and the primary witness and evidence will likely be located there. Judge F. Dennis Saylor has been assigned to hear the more than 120 suites filed in the case.

Today's Opinions

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TN Court of Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; and Alexander S. Rieger, Assistant Attorney General for the appellee, State of Tennessee Department of Children’s Services.

Judge: SWINEY

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Sheila W. (“Mother”) to the minor 1 children Dacia S., Aerial W.2 , and Teagan W.3 After a trial, the Trial Court entered its order terminating Mother’s parental rights to the Children after finding and holding, inter alia, that DCS had proven by clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and § 36-1-113(g)(3) and that the termination was in the Children’s best interest. Mother appeals to this Court. We affirm.

Wife and Husband entered into a marital dissolution agreement whereby Husband agreed to pay Wife rehabilitative alimony for three years. Husband terminated these payments and filed a petition to modify when Wife remarried and her employment situation improved. Wife filed motion for summary judgment on the issue asserting that the alimony payments could not be modified or terminated. The trial court ruled the alimony payments could not be modified because they were contractual in nature and awarded Wife her attorney’s fees. Husband appealed both the court’s ruling as well as the award of fees. We reverse the trial court’s judgment that the rehabilitative alimony payments are unmodifiable because the applicable statute expressly provides that a court may modify this type of alimony upon a showing of a substantial and material change of circumstances. We affirm the trial court’s award of attorney’s fees based on the language of the parties’ agreement providing for the award of these fees.

This appeal concerns the administration of an estate. Decedent died testate, leaving all of his non-marital property to his surviving spouse and appointing his daughter as executrix. Executrix and Beneficiary initially agreed that administration of the estate was unnecessary. After Beneficiary suffered an injury and was diagnosed with Alzheimer’s Disease, Executrix attempted to parcel out the property to Beneficiary’s intended heirs. Shortly thereafter, Beneficiary sought administration of the estate. The trial court admitted the estate and following lengthy hearings regarding which items belonged in the estate, directed Executrix to pay the expenses and close the estate. Beneficiary did not appeal. Over Beneficiary’s objection, Executrix organized an auction of the items held in the estate to satisfy the expenses. Following the auction, Beneficiary filed a petition in which she alleged that Executrix breached her fiduciary duty to the estate by organizing an auction that resulted in waste and mismanagement of estate funds. The trial court denied the petition. Beneficiary appeals. We affirm the decision of the trial court.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for McMinn County (“the Juvenile Court”) seeking to terminate the parental rights of Jennifer K. (“Mother”) to the minor children Selena V. and Liliana V. (“the Children”), born in 2007 and 2008 respectively. After a trial, the Juvenile 1 Court terminated the parental rights of Mother to the Children after finding that the ground of persistent conditions pursuant to Tenn. Code Ann. § 36-1-113 (g)(3) had been proven by clear and convincing evidence, and that clear and convincing evidence had been shown that it was in the Children’s best interest for Mother’s parental rights to be terminated. Mother appeals to this Court. We affirm.

TN Court of Criminal Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Steven Bebb, District Attorney General; and Brooklynn Townsend, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Khalid Bashir, was stopped while driving on I-75 North in Bradley County, Tennessee. Tennessee State Troopers issued a speeding citation and searched the vehicle. During the search, they discovered a large bag of marijuana, cocaine, Ecstasy, and two digital scales. The Bradley County Grand Jury indicted Appellant for speeding; driving on a revoked license, second offense; criminal impersonation; possession of cocaine; possession of marijuana; possession of a Schedule I drug; and possession of drug paraphernalia. Appellant filed a motion to suppress the evidence discovered in the vehicle, arguing that the investigatory stop, length of detention, and warrantless search of his vehicle and backpack were unconstitutional. The trial court denied the motion. Appellant appeals the denial of his motion. After a thorough review of the record, we conclude that the traffic stop was supported by probable cause and the trooper had probable cause to search the vehicle and backpack. Therefore, we affirm the denial of the motion to suppress.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Cleo D. Gadson, entered a best interest guilty plea to attempted second degree murder, agreeing to allow the trial court to determine his sentence. After a sentencing hearing, the trial court sentenced the Defendant to nine years, to be served at 30%. On appeal, the Defendant contends that the trial court erred when it sentenced him because it improperly considered written statements of persons other than the victim. He further contends that the manner of the service of his sentence is excessive. After a thorough review of the record and applicable authorities, we conclude that there is no error. We, therefore, affirm the trial court’s judgment.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Christopher Collins, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Frank L. Glavin, appeals his convictions for evading arrest, a Class E felony, and violating the noncriminal implied consent law. He argues on appeal that the evidence was insufficient to support the aforementioned convictions. Upon review, we affirm the judgment of conviction for evading arrest, and we reverse and vacate the judgment of conviction for violating the noncriminal implied consent law.

The defendant, Terrance Holliday, was found guilty of first degree (premeditated) murder of the victim, Michael Woods, and sentenced to life in prison with the possibility of parole. On appeal, the defendant claims that the evidence is insufficient to support his conviction. The defendant also claims that the trial court erred by denying his motion to suppress a photographic identification and by denying his motion in limine with respect to certain statements made by a deceased co-defendant, which were introduced into evidence though another witness. After careful review, we conclude that the evidence is sufficient to support the defendant’s conviction and that the trial court did not err by denying the defendant’s motions. The judgment of the trial court is affirmed.

The defendant, Steven Hood, pled guilty to robbery and aggravated assault, Class C felonies, in exchange for an effective sentence of eight years, and the trial court imposed a sentence of incarceration. On appeal, the defendant challenges the trial court’s denial of community corrections. After review, we affirm the trial court’s sentencing decision.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary dismissal of his pro se petition for a writ of error coram nobis. The petitioner maintains that the dismissal was error because newly discovered evidence reveals that his guilty pleas were the result of fraud; therefore, his pleas were not knowingly and voluntarily entered. Upon review, we affirm the judgment of the coram nobis court.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Robert Carter, District Attorney General; and Richard Cawley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, William Benton Pamplin, pled guilty to burglary of an automobile, vandalism, burning of personal property, and possession of a weapon by a felon. The trial court sentenced him to a six-year sentence, which was to be served on probation. The Defendant’s probation officer filed a probation violation warrant, alleging the Defendant had violated the terms of his probation by filing a false police report. After a hearing, the trial court agreed and revoked the Defendant’s probation. On appeal, the Defendant contends that the trial court improperly ordered him to serve the balance of his sentence in confinement. After a thorough review of the record and applicable authorities, we conclude that the trial court did not err when it revoked the Defendant’s probation and ordered the Defendant to serve the balance of his sentence in confinement. We, therefore, affirm the trial court’s judgment.

The Defendant-Appellant, Jeremy Stevenson, was convicted by a Shelby County jury of first degree felony murder and especially aggravated robbery and was sentenced to concurrent sentences of life imprisonment and twenty years. On appeal, Stevenson argues that the evidence is insufficient to establish his identity as the perpetrator of these offenses. Upon review, we affirm the judgments of the trial court.

The Defendant, Rodney Watkins, appeals from his conviction by a Shelby County Criminal Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210 (2010). The Defendant is serving a twenty-five-year sentence as a violent offender. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred in admitting evidence about rumors regarding the victim’s disappearance, and (3) the trial court erred in ruling that the defense could not cross-examine a witness about the witness’s prior assault of his stepfather. We affirm the judgment of the trial court.

Stephanie T. Barca, Assistant Public Defender, for the appellant, David Paul Zwarton.

Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel; Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

David Paul Zwarton (“the Defendant”) pleaded guilty to one count of theft of property of $1,000 or more but less than $10,000. Pursuant to the plea agreement, the Defendant was sentenced as a Range I, standard offender to three years, leaving the trial court to determine whether the sentence would be served concurrently or consecutively to a four-year sentence imposed by the Coffee County Circuit Court. After a hearing, the trial court ordered that the Defendant serve his three-year sentence consecutively to his Coffee County sentence. The Defendant appealed the trial court’s ruling. Upon our thorough review of the record, we affirm the judgment of the trial court.

Today's News

Legal News

Four in the Running for Juvenile Court Judge

Four attorneys have expressed interest in applying for the Juvenile Court judge vacancy caused by Judge Suzanne Bailey’s April 30 retirement. The Chattanoogan reports that Juvenile Court Magistrate Troy McDougal and attorneys Rob Filyaw, Ron Powers and Curtis Bowe are eying the position, although county commission chairman Larry Henry said he expects several more candidates to come forward prior to the expected appointment on May 1.

Gunman Wounds 2 Outside S.C. Courthouse

A courthouse shooting in South Carolina sent a young mother and her stepfather to the hospital on Wednesday, the ABA Journal reports. Police say Curtis Gorny has been charged with the shootings after exchanging gunfire with pursuing police officers. The incident follows another courthouse shooting this week in Delaware where a gunman killed two people before shooting himself.

LAS Sets 2013 People’s Law School Class Schedule

The Legal Aid Society (LAS) released its updated schedule of free legal classes through the People’s Law School, a program that provides an overview of legal issues that a typical person might face. The weekly, one-hour classes are offered February through April and focus on a different legal topic each week. Classes are taught by LAS staff and other volunteers. For more information or to register for a class, contact Nashville Community Education.

General Assembly News

Amendment Would Set Process for Determining Governor’s Capacity to Serve

Tennessee lawmakers are considering a constitutional amendment that would give the supreme court an important role in determining if a governor is incapable to serve. Under SJR 103 introduced by Knoxville Republican Senator Becky Duncan Massey, the Attorney General could petition the Supreme Court seeking a declaration that the governor was “unable to perform the powers and duties of the office.” The court would rule on the petition and could remove the governor, who must then re-petition the Court for reinstatement within 30 days. If passed, Tennessee would join 25 other states that allow the court to play a role in gubernatorial incapacity determinations. Gavel to Gavel has the story.

Senate Approves State Income Tax Ban

The Senate voted 26-4 to approve a proposed constitutional amendment to ban a state income tax, WSMV News 4 reports. If the House concurs, the amendment would be placed on the ballot for Tennessee voters in the next year’s general election. The proposal was sponsored by Sen. Brian Kelsey, R-Germantown.

Rep. Pushes Bill to Stop Chattanooga 'Cherry Picking'

State Rep. Mike Carter, R-Ooltewah, is pressing legislation aimed at blocking Chattanooga from allegedly “cherry picking” affluent suburbs outside its current urban growth boundary plan. “This bill would say that before you can open your urban growth plan you must annex all areas within your currently existing urban growth area.” Carter told the Chattanooga Times Free Press.

Passages

Former Greenfield Judge Dies at 94

Judge Phil B. Harris died yesterday (Feb. 13) at the age of 94. He was a graduate of the University of Tennessee and received his J.D. from the University of Virginia. During law school, Harris left to serve in the military during World War II, was honorably discharged, then returned to finish his degree. He was elected as Circuit Court Judge for the 14th Judicial District, presiding until his retirement in 1990. Judge Harris also served specially on the Worker's Compensation Panel of the Supreme Court. Visitation will be Friday 5-8 p.m., with funeral service set for Saturday at 11 a.m. at First Presbyterian in Greenfield. The family requests any donations should go to charity.

TBA in the News

The TBA has been featured in a number of news stories this past week about its response to Lt. Gov. Ron Ramsey’s judicial redistricting proposal. In an article in the Tennessean, Gif Thornton, who represents the TBA on Capitol Hill, said lawyers “look forward to playing a constructive role in the process and helping draw the best lines possible.” An article in Knoxnews quoted TBA Executive Director Allan Ramsaur saying, "There always needs to be careful analysis of the way in which the districts are laid out and their caseloads. The most important thing is whether you have the right level of judicial resources, not what counties which judge is in.” That same story ran in the Times News. In an earlier article, Ramsaur cautioned that the process be done “with some sensitivity.” On Monday, Ramsey encouraged the TBA to submit its own recommendation for drawing new lines.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.